CLA–2 OT:RR:CTF:TCM H153035 AMM
Port Director
Service Port – Houston
2350 N. Sam Houston Pkwy E. #1000 Houston, TX 77032-3100
Attn: Connie Reamer, SIS
RE: Internal Advice; classification of a Celox Optical Grader
Dear Port Director,
This is in regard to your memorandum dated January 19, 2011, forwarding with comments a request for Internal Advice from the Service Port of Houston (the Port) initiated by Livingston Consulting (Livingston), pursuant to 19 CFR §177.11. At issue is the classification of the Newtec Celox RV12 Optical Grader under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The article at issue is the Newtec Celox RV12 Optical Grader (RV12). The RV12 is an optical grader that grades potatos, carrots, and cucumbers by quality and size. First, the produce is fed to the infeed section, where it is separated on 12 vibrating channel feeders. The produce is then moved through the second section, a camera unit where each piece of produce is photographed up to 40 times. Information obtained from these photographs includes length, diameter, and surface condition of each item. The produce is then graded based on this information and the parameters programmed into the machine. The produce then moved to the third section, a Spinaflex unit which deliveres the produce according to the assigned grade. The RV12 also features a computer system for control.
ISSUE:
What is the classification of the RV12 under the HTSUS?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The 2011 HTSUS provisions under consideration are:
8433 Harvesting or threshing machinery, including straw or fodder balers; grass or hay mowers; machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of heading 8437; parts thereof:
8433.60.00 Machines for cleaning, sorting or grading eggs, fruit or other agricultural produce
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8438 Machinery, not specified or included elsewhere in this chapter, for the industrial preparation or manufacture of food or drink, other than machinery for the extraction or preparation of animal or fixed vegetable fats or oils; parts thereof:
8438.60.00 Machinery for the preparation of fruits, nuts or vegetables
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to Heading 84.33 states, in pertinent part:
(B) MACHINES FOR CLEANING, SORTING OR GRADING EGGS, FRUIT OR OTHER AGRICULTURAL PRODUCE
The heading also covers machines, whether of horticultural, agricultural or industrial types, used for cleaning, sorting or grading produce, such as eggs, fruit, potatoes, onions, bulbs, carrots, asparagus and gherkins, according to size, shape, weight, etc. They remain classified in the heading whether or not they are electrically operated (e.g., photoelectric testers and graders), and they may be equipped with auxiliary devices (e.g., for testing eggs or for marking the produce).
Machines for cleaning, sorting or grading seed, grain or dried leguminous vegetables are excluded (heading 84.37).
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The EN to Heading 84.38 states, in pertinent part:
This heading covers machinery, not specified or included elsewhere in this Chapter, for the industrial preparation or manufacture of food or drink (whether for immediate consumption or preserving, and whether for human or animal consumption) …
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(VIII) MACHINERY FOR THE PREPARATION OF FRUITS, NUTS OR VEGETABLES
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The heading excludes:
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(c) Fruit or vegetable grading machines (heading 84.33).
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In New York Ruling Letter (NY) 862219, dated April 17, 1991, CBP considered the classification of the Greefa Grader. These machines were designed to clean and grade fruit and some small vegetables such as tomatoes. The produce was moved along a conveyer belt where items were measured, sized, washed, and sorted. CBP classified this merchandise under heading 8433, HTSUS.
According to the product information submitted by Livingston, the RV12 is similar to the Greefa Grader of NY 862219. The RV12 is a machine used for sorting or grading produce, such as potatoes, according to size, shape, weight, and other factors. It is not designed for cleaning, sorting or grading seed, grain or dried leguminous vegetables. As such, it is a machine for sorting or grading other agricultural produce, of heading 8433, HTSUS. The fact that it is electrically operated, and is equipped with cameras and other auxiliary devices, does not exclude it from that heading. See also EN(B) to Heading 84.33. Specifically, the RV12 is classified in subheading 8433.60.00, HTSUS, which provides for “…; machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of heading 8437; … : Machines for cleaning, sorting or grading eggs, fruit or other agricultural produce”.
Heading 8438, HTSUS, provides for “Machinery, not specified or included elsewhere in this chapter, for the industrial preparation or manufacture of food or drink …”. This is a basket provision. Because the RV12 is provided for under heading 8433, HTSUS, it cannot also be classified under heading 8438, HTSUS. See also EN(VII)(c) to heading 84.38.
HOLDING:
The Newtec Celox RV12 Optical Grader is properly classified under heading 8433, HTSUS, specifically under subheading 8433.60.00, HTSUS, which provides for: “Harvesting or threshing machinery, including straw or fodder balers; grass or hay mowers; machines for cleaning, sorting or grading eggs, fruit or other agricultural produce, other than machinery of heading 8437; parts thereof: Machines for cleaning, sorting or grading eggs, fruit or other agricultural produce”. The general, column one rate of duty is free.
Duty rates are provided for the internal advice applicant’s convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
You are directed to mail this decision to the internal advice applicant, no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other public methods of distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division